Citation Nr: 1756570 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-30 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased rating for a right knee disability in excess of 10 percent prior to March 29, 2017, and in excess of 20 percent thereafter. 2. Entitlement to a total disability rating based on unemployability (TDIU) prior to July 17, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Price, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from September 1968 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. The Board remanded the appeal in March 2017 and requested the RO schedule the Veteran for another VA examination and readjudicate his claims. A VA examination was conducted in March 2017. An August 2017 rating decision awarded a 20 percent rating for the Veteran's right knee disability effective March 29, 2017. The RO then returned the appeal to the Board. This appeal was processed utilizing Virtual VA and the Veterans Benefits Management System (VBMS), VA's paperless claims processing systems. FINDINGS OF FACT 1. Prior to March 29, 2017, the Veteran's right knee disability was productive of limitation of extension to zero degrees, and limitation of flexion to 105 degrees with pain. 2. From March 29, 2017, the Veteran's right knee disability had full range of motion but was productive of episodes of locking and severe pain. 3. Although the Veteran met the schedular requirements for a TDIU, his service-connected disabilities did not preclude him from obtaining and retaining substantially gainful employment prior to July 17, 2014. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to March 29, 2017, and in excess of 20 percent thereafter, for right knee disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003-5261 (2017). 2. Prior to July 17, 2014, the criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). II. Right Knee Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil jobs. 38 C.F.R. § 4.1. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran is currently assigned a 20 percent disability evaluation for his right knee. Prior to March 28, 2017, his right knee was evaluated at 10 percent disabling. Under Diagnostic Code 5003, degenerative arthritis is rated based on limitation of motion of the affected part. Diagnostic Codes 5260 and 5261 are used to rate limitation of flexion and of extension of the knee. Under Diagnostic Code 5260, limitation of flexion of the knee to 45 degrees warrants a 10 percent rating. Limitation of flexion of the knee to 30 degrees warrants a 20 percent rating, and limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. Under Diagnostic Code 5261, limitation of extension of the knee to 5 degrees warrants a zero or noncompensable rating. Limitation of extension of the knee to 10 degrees warrants a 10 percent rating. With limitation of extension of the knee to 15 degrees, a 20 percent rating is assigned. Limitation of extension of the knee to 20 degrees warrants a 30 percent rating, and with limitation of extension of the knee to 30 degrees, a 40 percent rating is assigned. Limitation of extension of the knee to 45 degrees warrants a 50 percent rating. Normal range of motion of the knee is from zero degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2017). Review of the Veteran's treatment records revealed complaints of severe pain, stiffness, and weakness, as well as treatment in the form of medication and cortisone injections. The Veteran was afforded a VA joints examination in December 2004 and reported pain in his right knee that was aggravated by prolonged standing, walking, running, climbing, and kneeling. The Veteran had normal gait and posture and was able to walk, squat and get on the examination table without difficulty. Range of motion was measured to zero degrees of extension and 135 degrees of flexion. There was no instability. He had crepitation on range of motion. The examiner diagnosed residuals of Osgood-Schlatter's disease and chondromalacia in the right knee. X-rays taken in December 2004 showed some joint space narrowing, which the examining physician noted may have been mild degenerative disease. Another VA joints examination was conducted in August 2005 and range of motion had not changed from the December 2004 exam; zero degrees of extension and 135 degrees of flexion. X-rays taken in July 2005 showed no changes since the previous examination and the knee joint appeared grossly unremarkable. An MRI in May 2006 showed a meniscal tear and early degenerative changes. During the April 2008 VA examination, the Veteran had a normal gait and posture; he was able to fully squat and walk without the use of an assistive device. There was no tenderness, swelling, deformity, or instability of the right knee. Range of motion was to zero degrees of extension and 135 degrees of flexion. There was no pain on range of motion or after repetitive use testing; there was crepitation on range of motion. He had some limitation in prolonged standing, kneeling, and climbing due to discomfort in his knee. X-rays shows mild osteoporosis in the knee. In 2009, he was given a cane to assist in ambulation. In March 2009, range of motion in his right knee was measured at zero degrees of extension to 120 degrees of flexion; x-rays showed minimal degenerative disease but no evidence of joint effusion. In August 2009, he reported problems climbing stairs. A routine evaluation conducted in February 2010, showed he had active range of motion from zero degrees of extension to 105 degrees of flexion; he had pain on weight bearing and palpation of medial joint lines. Another VA examination for the knees was performed in August 2011 and the Veteran reported using a soft knee brace and walking two to three miles per day while working. On physical evaluation, there was no sign of inflammation or instability. Range of motion was measured at zero degrees of extension and 140 degrees of flexion. There was no pain on range of motion. The examiner diagnosed early degenerative joint disease. The Veteran was afforded a hearing before a Decision Review Officer (DRO) at the RO in February 2013. He testified that he was using both a cane and knee brace in order to ambulate. As far as treatment, he was given cortisone shots in his knee; however, he stated that he was up to the maximum amount of cortisone he could have and the pain was still bothersome. He required assistance getting up from a kneeling position and his knee got weak after prolonged walking. He also noted some "grinding" in his knee. During the April 2013 VA examination, the Veteran reported pain with prolonged walking. Range of motion was measured from zero degrees of extension to 125 degrees of flexion. He was able to perform repetitive use testing without any additional loss of function or range of motion. There was tenderness or pain on palpation of the joint line or soft tissues. Muscle strength was 5/5. There was no instability or ankylosis. The most recent VA examination for knee and lower leg conditions was performed in March 2017 and the Veteran reported being unable to get out of bed due to pain and stiffness in his knee. He also reported frequent episodes of joint locking and pain. He had full range of motion with pain on both flexion and extension. He was able to perform repetitive use testing without any additional loss of range of motion. There was localized tenderness or pain on palpation of the patellar area and evidence of crepitus. He had pain with weight bearing. There was some functional loss in the form of weakened movement and interference with standing. Muscle strength was normal. There was no ankylosis or instability. Based on the medical and lay evidence of record, the Board concludes an increased rating for the right knee is not indicated at any point during the appeal period. Prior to March 29, 2017 The available evidence shows that prior March 29, 2017, at worst, the Veteran demonstrated extension to zero degrees and flexion to 105 degrees for the right knee. Such results are consistent with a zero percent rating under Diagnostic Codes 5261 and 5260. However, the Veteran was awarded a 10 percent rating based on painful or limited motion of a major joint, pursuant to sections 4.40 and 4.45, and Deluca. Even with painful motion, prior to March 29, 2017, the Veteran had full extension and although flexion was limited, it never dropped to a level that would warrant compensation under Diagnostic Codes 5261 and 5260. The current 10 percent rating awarded for that period is representative of his symptoms and limitations and is the highest available rating based on the evidence and consideration of functional impairment and painful motion. From March 29, 2017 During the March 2017 VA exam, the Veteran demonstrated full range of motion, which, under the relevant diagnostic codes is noncompensable. However, he also reported episodes of locking and severe pain; therefore, he was awarded 20 percent-the maximum rating under Diagnostic Code 5258. The Board finds that no other diagnostic code provides a basis for a rating in excess of 10 percent prior to March 29, 2017, or 20 percent thereafter, including any other separate rating. There was no probative evidence of instability, ankylosis, or dislocated or removed cartilage. Therefore, a rating of his knee under Diagnostic Code 5256, 5257, or 5259, is not warranted. III. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his or her employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran contends that due to his service connected disabilities, he was unable to work. He reported he last worked full time in January 2012. The RO granted a TDIU, effective July 17, 2014. For the reasons below, the Board finds that the Veteran is not entitled to a TDIU prior to July 17, 2014. The Veteran has several service connected disabilities. Beginning May 2013, the RO awarded a 100 percent rating for his service-connected prostate cancer, and beginning in January 2014, he was in receipt of a combined schedular rating for all his service-connected disabilities. Prior to May 2013, the Veteran's service-connected disabilities included: post-traumatic stress disorder (PTSD) at 70 percent, diabetes mellitus at 20 percent, and a right knee disability at 10 percent. His combined rating for the time period on appeal is 80 percent. As such, he met the schedular rating threshold for the grant of a TDIU beginning January 12, 2012, when he retired. Thus, the main question before the Board is whether the Veteran's service-connected disabilities alone rendered him unable to obtain substantially gainful employment. The examiner from the August 2011 joints examination noted that there was no evidence of adverse impact on activities of daily living or occupation. The Veteran did not have any functional limitation in standing or walking. During the August 2011 PTSD examination, the examiner noted that the Veteran missed several weeks of work in the previous year due to medical appointments and joint pain, particularly his shoulder. He did not report missing time from work due to symptoms of PTSD. Overall, the examiner found that his symptoms were controlled by continuous medication and did not impact his ability to socialize or perform his work duties. In his application for disability retirement submitted in October 2011, the Veteran mentioned his main complaints of severe pain in his neck and shoulder. He also noted that walking the city streets was hard on his legs, but did not elaborate and was only examined for his shoulder and PTSD. There was nothing regarding diabetes mellitus or any mental health concerns. In January 2012, the Veteran was awarded non-line of duty disability retirement from his position with the City of Baltimore based on severe pain in his shoulder and neck. During the January 2013 VA exam for diabetes mellitus, the examiner noted that the Veteran's condition did not impact his ability to work. During the DRO hearing in February 2013, the Veteran testified that in the year prior to the hearing, he had missed over two weeks of work in order to attend appointments. It is unclear, if that meant he was still employed at that time, which would have been over a year after he received disability retirement from his position with the city. During the April 2013 VA examination, the examiner noted that the Veteran's right knee disability impacted his ability to work because of increased problems with his knee while walking about two miles per day as part of his job. The examiner noted that the Veteran had retired on disability but not for his knee. Ultimately, the examiner found that his knee condition did not preclude him from working in a sedentary capacity. He would be unable to do any physical type of labor to any meaningful degree to maintain employment. The examiner from the April 2013 VA PTSD examination noted that based on the available evidence, the criteria for a continuing PTSD diagnosis were barely met and his level of functioning had improved since the last exam. The examiner concluded his symptoms of PTSD would not hinder his ability to obtain and sustain gainful employment. In his July 2013 TDIU application, the Veteran indicated that he became too disabled to work on December 30, 2011 due to PTSD, diabetes mellitus, and Osgood Schlatter's disease. Further, he stated that he lost 30 days from work due to illness. He noted that he was unable to lift heavy objects because he had problems with his right shoulder and neck pain. The Veteran submitted another TDIU application in July 2014 and noted that various disabilities caused him to leave his employment in January 2012. He did not have any other education or training before or after leaving his position. He also noted that he had to file for disability due to PTSD and diabetes mellitus. Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran was not precluded from obtaining and maintaining gainful employment consistent with his education and occupational experience due to his service-connected disabilities. VA examiners did not find that the Veteran was unemployable due to PTSD, diabetes mellitus, or right knee disabilities, but the ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran has reported that due to his service connected disabilities he was unable to continue working and had to retire; however, his July 2013 TDIU application and the disability retirement he received in January 2012 indicated more specifically that his limitations were due to his right shoulder and neck. In his October 2011 disability retirement application, he specifically mentioned his neck and shoulder conditions as preventing him from performing his job duties. As mentioned above, TDIU can only be awarded based on the occupational impairment due to his service connected disabilities; the Veteran's right shoulder and neck conditions are not related to service. VA examiners have noted that his PTSD symptoms had improved to a level that he barely met the criteria for the diagnosis. Although the Veteran retired from a largely manual labor position, it was mentioned his right knee disability did not prevent him from working in a sedentary position, which for VA purposes is still gainful employment. In sum, although the April 2013 VA examiner observed limitations preventing the Veteran from working in a manual labor position, the most probative evidence of record does not support the finding that his PTSD, diabetes mellitus, and right knee diagnoses precluded his ability to work for the period on appeal. The Veteran was awarded disability retirement based on his shoulder and neck problems, and previous examiners did not find his right knee disability to be so debilitating as to preclude him from working. Despite the Veteran's assertions to the contrary, the most probative evidence do not show that his service-connected disabilities alone precluded him from securing or maintaining substantially gainful employment prior to the award of a TDIU in July 2014. For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities did not preclude substantially gainful employment prior to July 2014. It follows that the evidence is not in equipoise and a favorable determination on this issue is not justified. 38 U.S.C.A. § 5107(b). ORDER An increased rating for right knee disability is denied. A TDIU, prior to July 17, 2014, is denied. ____________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs